You may have come across this story over the last few months – one Mr Hew Griffiths, an Australian software pirate – was extradited to the United States and prosecuted for offences under US copyright law. He subsequently pleaded guilty in a court in Virginia.

Some insightful commentary is here, on LawFont:

But we should be shocked, and worried, by what has happened to Griffiths. Why? Because before he was extradited, Griffiths had never set foot in the United States. It is a worry that we have, without any apparent demur on the part of Australian authorities, the exercise of US jurisdiction. It means that Australian authorities will, it seems, happily allow US law to be applied to acts done in Australia. Why? There is no reason why Griffiths could not have been charged, and tried, in an Australian court.

The jurisdictional issue is perhaps a little more complex. Although Griffiths has not ’set foot’ in the United States, his crimes did harm the interests of U.S. copyright holders. As such, in a sense the relevant harm was suffered in the United States. Such issues have always vexed courts – for instance, if you stand in France and shoot someone over the border in Spain, where did the crime take place for the purposes of state-specific criminal laws? (answers on the back of a postcard) Likewise, if you sit on a computer and criminally violate the copyright of a U.S. corporation, where are you liable? (Note that this blog does not necessarily agree with the law in question).

Another relevant aspect of this case is that Griffiths was a leader of a group dedicated to a criminal enterprise, and had a high profile within that particular subculture. It would not be unusual with respect to other types of crime for a prominent member of a group to be extradited to face charges in another country.

What is problematic, however, is that the U.S. stance on copyright infringement is arguably the most extreme in the world, and yet the Australian Federal Government has gone out of its way to help extradite Mr Griffiths when he could easily have been prosecuted under Australian laws. America has long been prepared to pressure other countries to adopt its policies on intellectual property. Since the Australia-U.S. Free Trade Agreement was entered into, this process seems to be accelerating in Australia. Australia has strengthened it’s own laws:

The changes in principle that the FTA required, and the changes in Australian law, have increased the criminalisation of copyright infringement

but of course the U.S. has not modified a line of its statutes to accommodate the Australian position on IP:

The reality is that American law doesn’t change; Australian law changes, but specifically it excludes the consumer-friendly parts of American copyright law, namely the doctrine of fair use.

There are plenty of recent examples of just how skewed the U.S. view on copyright infringement and other intellectual property “crimes” has become as a result of awesomely successful lobbying efforts by copyright holders. For example, it was recently put forward as a serious proposition that law enforcement resources are being wasted on crimes such as bank robbery and burglary when they would be better put to use enforcing copyright. Perhaps motivated by the local SWAT team’s unwillingness to hunt down teens burning mix-CDs, the Recording Industry Association of America even dressed its employees as faux-FBI-style agents to conduct copyright ‘raids’. There are countless other examples of vicious litigation, political manipulation, harassment and misinformation, all of which has created a hostile legal environment in the United States in which even very minor copyright infringement can easily produce extremely serious consequences for an individual.

Mr Griffiths’ case raises some serious questions:

1. Why is Australia, as an independent nation, prepared to ship an Australian citizen to defend serious criminal charges in a country with laws and policies in the relevant area that do not accord with our own, and are at best highly contentious and and worst extreme and unbalanced? In particular, why are we prepared to do this when we already possess a comprehensive set of Australian laws with respect to the conduct in question and could easily have dealt with the matter domestically if we considered it to be criminal in nature?
2. Why are we so willing to co-operate with the U.S. on questions of intellectual property rather than having our own informed and rational debate about such matters? Many aspects of the U.S. system seem to produce results ranging from ridiculous to outrageous, and they are not results that the Australian community or even the Australian Parliament have endorsed (the two being quite distinct, of course).
3. Do we, as a nation, really want to participate in the criminalisation of a type of conduct that is utterly different from the types of conduct that ordinarily constitute a ‘crime’? Should copyright actions against individuals be limited to the civil law sphere? Should anyone ever go to prison for breaching copyright or other intellectual/intangible property rights?

Inchoate points to some remarks by Justice Young in an article in the Australian Law Journal ((2007) 81 ALJ 223 at 225), which perhaps put it best:

There have been previous notes in the Journal about the bizarre fact that people are being extradited to the US to face criminal charges when they have never been to the US and the alleged act occurred wholly outside the US.

…

International copyright violations are a great problem. However, there is also the consideration that a country must protect its nationals from being removed from their homeland to a foreign country merely because the commercial interests of that foreign country are claimed to have been affected by the person’s behaviour in Australia and the foreign country can exercise influence over Australia.

No attack is being made on the Federal Court in this note. Assuming the decision is correct, should not the Commonwealth Parliament do more to protect Australians from this procedure. An article in The Sydney Morning Herald of 16 February 2007, pointed out that the US had not sought to extradite nationals from other countries allegedly involved in the same misconduct.

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